Feds move to block discovery in NSA lawsuits

1/8/14 8:57 PM EST

The Justice Department moved Wednesday night to block the plaintiffs in the most successful legal challenges to the National Security Agency's call-tracking program from obtaining more details about how the surveillance effort operates.

In a motion filed with U.S. District Court Judge Richard Leon, government lawyers asked the judge to halt further proceedings before him while appeals go forward in a pair of lawsuits brought by conservative legal activist Larry Klayman. The suits led last month to Leon's landmark ruling that the NSA's call database, aimed at making it easier for the government to trace leads in potential terrorism cases, likely violated the Fourth Amendment to the U.S. Constitution.

"Even if the mere collection of information about Plaintiffs’ communications constitutes a Fourth Amendment search...conclusively resolving the reasonableness of that search ultimately could risk or require disclosure of exceptionally sensitive and classified intelligence information regarding the nature and scope of the international terrorist threat to the United States, and the role that the NSA’s intelligence-gathering activities have played in meeting that threat," the government motion states.

"Plaintiffs have made clear their intentions to seek discovery of this kind of still-classified information, concerning targets and subjects, participating providers, and other operational details of the challenged NSA intelligence programs," the motion (posted here) adds. "Contentious litigation over the availability of classified information to litigate these cases against the Government Defendants, and the significant risks to national security if such information were disclosed, could and should be avoided by allowing the Court of Appeals to rule first on the legal viability of Plaintiffs’ claims against the Government Defendants."

Klayman's past litigation has been known for being as impactful and sometimes more impactful in the discovery phase, where lawyers demand documents and conduct depositions, as in its ultimate outcome. So, the government's desire to head that process off for now, and perhaps entirely, is understandable.

Klayman didn't immediately respond to an e-mail seeking comment for this item, but made clear in an interview last month that he was eager to start demanding information on the NSA's surveillance efforts.

"We’re heading to discovery. We’ve got an entree into the NSA,” he crowed just after Leon issued his ruling determining that the mass collection of phone data was probably unconstitutional. The conclusion led Leon to order a halt to NSA's gathering of phone data on Klayman and one of his clients, but the judge halted that part of his order pending appeal.

The new government filing also underscores a still unresolved aspect of the NSA call-tracking effort: just how comprehensive it is.

"Although the Government has acknowledged that the program involves the collection and aggregation of a large volume of data from multiple providers, it has not represented in this litigation, nor does the record contain any representations by the Government, that the program captures information about all (or even virtually all) telephone calls to, from, or within the United States," the Justice Department lawyers wrote.

The motion goes on to point to a declassified Foreign Intelligence Surveillance Court order from August that stated: "production of all call detail records of all persons in the United States has never occurred under this program."